Schurtz

Obviously, I concur in the opinion I authored. I write separately to emphasize two points.

First, I agree with the notion that Schurtz should be bound under the D’Amico rationale, but I have doubts about whether that approach would work where, as here, Schurtz’s rights under Paster’s insurance policy are derivative and dependent upon Paster’s position. Safeco makes it unnecessary to step into that quagmire.

Second, there is nothing in the lead opinion that is inconsistent with Teitelbaum Furs. As explained in part C, the evidence about Paster’s felony conviction is undisputed and indisputable. My analysis has nothing to do with admissions or collateral estoppel.

A woman shot and injured a man. As a result of the shooting, the woman entered a nolo contendere plea to a felony (assault with a firearm), and she also suffered a civil judgment against her and in favor of the man. The woman is bankrupt but she had homeowner’s insurance at the time of the shooting, and the man wants to collect his judgment from her insurer. The policy excludes coverage for “bodily injury . . . which is a foreseeable result of an intentional or criminal act of [the] insured or which is in fact intended by [the] insured.” In the insurer’s declaratory relief action against the man, the trial court granted the insurer’s motion for summary judgment. The man appeals, claiming there are questions of fact about the woman’s intent at the time of the shooting. We affirm on the ground that the “criminal act” exclusion applies without regard to the insured’s intent and (based on the undisptited facts of this case) without regard to the doctrine of collateral estoppel.

*1190 Facts

Armed with a semi-automatic handgun, Susan Paster entered Hugh Schurtz’s residence and shot at Schurtz, grazing his forehead and finger. Paster was arrested and charged with attempted…

I agree with everything in the lead opinion except part A. There, the opinion points out that at the time the matter was in the trial court, there was no real distinction between an intentional act and a criminal act and that so viewed, “the summary judgment probably could not stand. [Citing Teitelbaum Furs, Inc. v. Dominion Ins. Co. Ltd. (1962) 58 Cal.2d 601 [ 25 Cal.Rptr. 559 , 375 P.2d 439 .]” I think the summary judgment granted 20th Century must stand, either under the current post-Safeco environment or as the matter previously presented itself in the trial court. I agree that Teitelbaum “is alive and well.” I just do not think it is of any assistance to Schurtz. Irrespective of how Paster was convicted, Schurtz adamantly proclaimed throughout that Paster had deliberately tried to kill him. He did so in letters to the Probation Department and the trial court, in his deposition, and in a verified complaint. Only in a subsequent unverified amendment did he try to trump everything with his wholly inconsistent negligence claim.

Irrespective of Teitelbaum, which would preclude collateral estoppel based on Paster’s plea, if we were considering this matter pre-Safeco I would *1199…